COMPLAINT
Plaintiff Carol M. Highsmith (the “Plaintiff” or “Ms. Highsmith”), by and through her
counsel the GIOCONDA LAW GROUP PLLC and CARSTENS & CAHOON, LLP hereby brings this
Complaint against Defendants Getty Images (US), Inc. (“Getty”), License Compliance
Services, Inc. (“LCS”), Picscout, Inc. (“Picscout”), Alamy, Inc., Alamy, Ltd. (collectively,
“Alamy”), and John Does 1 to 100 (Getty, LCS, Picscout, Alamy and John Does 1-100,
collectively, the “Defendants”), and respectfully alleges as follows upon information and
belief, except for allegations regarding the Plaintiff or her counsel:
NATURE OF CASE
1.

This is a copyright lawsuit brought by distinguished American photographer

Carol M. Highsmith under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. §§
1202(a), 1202(b) and 1203, based upon the Defendants’ gross misuse of Ms. Highsmith’s
photographs – more than 18,000 of them.

PLAINTIFF’S ORIGINAL COMPLAINT

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2.

In December 2015, Ms. Highsmith received a letter addressed to her nonprofit

organization from the Defendants accusing her of copyright infringement and demanding
payment for displaying one of her own photographs on her own website.

See attached

Exhibit A.
3.

Ms. Highsmith subsequently learned that the Defendants have been sending out

similar threat letters to other users of her photography, and that Getty and Alamy are purporting
to sell licenses for thousands of her photographs on their commercial websites.
4.

Through the United States Library of Congress (“Library”), Ms. Highsmith had

previously given the public the right to reproduce and display all the photographs at issue in this
lawsuit, for free.
5.

Beginning in about 1988 and continuing from time to time, to the present, Ms.

Highsmith has been providing the Library with tens of thousands of her valuable photographs.
6.

These photographs represent her extensive documentation of people and places

to the American people. The Defendants are not only unlawfully charging licensing fees to
people and organizations who were already authorized to reproduce and display the donated
photographs for free, but are falsely and fraudulently holding themselves out as the exclusive
copyright owner (or agents thereof), and threatening individuals and companies with copyright
infringement lawsuits that the Defendants could not actually lawfully pursue.
8.

As described further herein below, the conduct of the Defendants runs afoul of

the DMCA’s provisions proscribing the removal, modification and falsification of “copyright

Furthermore, despite the fact that Ms. Highsmith objected to the Defendants’

conduct shortly after receiving the Defendants’ threatening letter, such brazen and extortionate
conduct still continues to this day, as the Defendants continue to threaten users of Ms.
Highsmith’s photography. Defendants continue to license these images, in exchange for money
that they know they are clearly not entitled to collect.
10.

among other things, and if she so elects as provided in 17 U.S.C. § 1203(c)(3)(B), “an award of
statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more
than $25,000.”
11.

count for each of the 18,755 Highsmith Photos appearing on Getty’s website. Thus, Ms.
Highsmith is entitled to recover, among other things, and if she so elects, aggregate statutory
damages against Getty of not less than forty-six million, eight hundred eighty-seven thousand
five hundred dollars ($46,887,500) and not more than four hundred sixty-eight million, eight
hundred seventy-five thousand dollars ($468,875,000).
12.

The unlawful conduct complained of herein is not Getty’s first violation of the

DMCA, codified at 17 U.S.C. § 1202.
13.

Getty was found by this Court to have violated 17 U.S.C. § 1202 within the last

3 years, and ordered to pay over $1 million in damages.

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14.

Because Getty has already had a final judgment entered against it by this Court

under 17 U.S.C. § 1202 in the past three years, this Court may treble the statutory damages in
this case against Getty.
15.

Getty must therefore account for well over one billion dollars ($1B) in statutory

copyright damages in this case.
16.

Unfortunately, the Defendants’ bad faith business practices have proven to be so

lucrative, their behavior has apparently continued unabated.
17.

Absent Order of this Court and such exemplary damages to deter such egregious

conduct, Ms. Highsmith and the public at large will continue to be defrauded, misled, and
irreparably injured by the Defendants’ unlawful acts.
PARTIES
18.

Plaintiff Carol M. Highsmith is an individual and American citizen residing at

7501 Carroll Avenue, Takoma Park, Maryland 20912-5715.
19.

Defendant Getty Images (US), Inc., is a corporation organized and existing under

the laws of Delaware, having its principal place of business at 605 Fifth Avenue South, Suite
400, Seattle, Washington 98104, and also having offices at 75 Varick Street, New York, New
York 10013, and owns and/or is operated under common control with Defendant License
Compliance Services, Inc., and Defendant Picscout, Inc.
20.

Defendant Picscout, Inc. is a corporation organized and existing under the laws

Defendant License Compliance Services, Inc., is a corporation organized and

existing under the laws of Washington, having its principal place of business at 701 Fifth
Avenue, Suite 4200, Seattle, Washington 98104, and is owned by and operated under common
control with Defendant Getty Images (US), Inc.
22.

Defendant Alamy, Inc., is a corporation organized and existing under the laws of

New York, having its principal place of business at 20 Jay Street, Suite 848, Brooklyn, New
York 11201, and owns, is owned by, and/or is operated under common control with Defendant
Alamy, Ltd.
23.

Defendant Alamy, Ltd., is a limited company organized and existing under the

laws of the United Kingdom, having its principal place of business at 6 – 8 West Central, 127
Olympic Avenue, Milton Park, Abingdon, Oxon, OX14 4SA, United Kingdom, and also having
offices at 20 Jay Street, Suite 848, Brooklyn, New York 11201, and owns, is owned by, and/or
is operated under common control with Defendant Alamy, Inc.
24.

Defendants John Does 1 to 100 are unnamed, as yet unidentified parties acting in

active concert or participation with the named Defendants as part of this course of conduct.
25.

Ms. Highsmith reserves the right to amend this Complaint to include any and all

other corporations, business entities, or persons affiliated in any way with Defendants which are
or may be responsible for or involved with the wrongful conduct alleged herein.

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JURISDICTION AND VENUE
26.

Defendant Getty has actively contracted to supply goods and/or services in the

State of New York, and within this Judicial District, and actively conducts business directly and
through its representatives in the State of New York, and within this Judicial District, in
connection with the matters giving rise to this action. This Court, therefore, has personal
jurisdiction over Getty, and its wholly-owned subsidiaries/alter-egos Picscout and LCS.
27.

services in the State of New York, and within this Judicial District, and actively conduct
business directly and through their representatives in the State of New York, and within this
Judicial District, in connection with the matters giving rise to this action.
28.

in the State of New York, and within this Judicial District, and actively conducts business
directly and through its representatives in the State of New York, and within this Judicial
District, in connection with the matters giving rise to this action. This Court, therefore, has
personal jurisdiction over Alamy, Inc.
29.

in the State of New York, and within this Judicial District, and actively conducts business
directly and through its representatives in the State of New York, and within this Judicial
District, in connection with the matters giving rise to this action. This Court, therefore, has
personal jurisdiction over Alamy, Ltd.
30.

Jurisdiction over the subject matter of this action arises under 28 U.S.C. § 1331,

and under the copyright laws of the United States, Title 17 of the United States Code, including
but not necessarily limited to 17 U.S.C. § 1203.

PLAINTIFF’S ORIGINAL COMPLAINT

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31.

Venue is proper in this Court under 28 U.S.C. §§ 1391 and 1400.
FACTUAL ALLEGATIONS

Ms. Highsmith has taken photographs in all 50 States, the District of Columbia,

and Puerto Rico.
33.

As described in detail below, Ms. Highsmith’s work has been featured in more

than 50 books, as well as in movies and television programs, and on U.S. postage stamps.
34.

In 2011, Ms. Highsmith founded the nonprofit This is America! Foundation, with

a mission of producing a nationwide visual study of the United States of America in the early
21st Century. (See www.thisisamericafoundation.org)
b. Ms. Highsmith Has Graciously Made Her Work Available to the Public to
Reproduce and Display for Free through the Library of Congress.
35.

Since approximately 1988, Ms. Highsmith has made her photographs available to

the public for free through the U.S. Library of Congress, thereby exercising her exclusive rights
under 17 U.S.C. § 106 to distribute copies of her copyrighted work to the public by sale or other
transfer of ownership, and to authorize others to do so.
36.

At no time did Ms. Highsmith intend to abandon her rights in her photographs,

including any rights of attribution or rights to control the terms of use for her photographs, nor
was it ever her intent to enable third parties to purport to sell licenses for her photographs, or
send threating letters to people who used her photos.
37.

At all times relevant to this lawsuit, Ms. Highsmith’s intent has been that the

public should be able to reproduce and display her work for free, with proper accreditation
given to her and proper reference made to the Library collection.

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38.

The agreement that Ms. Highsmith signed with the Library in November 1991

specifically addressed attribution issues.
39.

A true and correct copy of the “Instrument of Gift” that Ms. Highsmith signed

on November 17, 1991, is attached hereto as Exhibit B.
40.

Ms. Highsmith’s work is available on the Library website together with the

copyright management information for each work, including information identifying Ms.
Highsmith as the author of each work, providing the date of each work, providing the title of
each work, and identifying Ms. Highsmith as the copyright owner who stipulated the terms and
conditions of using the work, namely, that the public may reproduce and display the work for
free.
41.

One example of copyright management information provided in connection with

a Highsmith Photo on the Library website is attached hereto as Exhibit C.
42.

C. Ford Peatross, the Director of the Library’s Center for Architecture, Design

and Engineering in the Prints and Photographs Division, stated in a press release in December
2007 about Ms. Highsmith, that “[t]he donation of her photographs is one of the greatest acts of
generosity in the history of the Library.”
c. Ms. Highsmith and Her Work Are Held in the Highest Esteem.
43.

Ms. Highsmith and her work have been widely recognized and praised, earning

her and her work distinguished reputations of the highest caliber.
44.

For example, Ms. Highsmith’s collection at the Library is featured in the top 6

Lange, and the Historic American Buildings Survey. Ms. Highsmith is the only living person so
honored.
45.

Additionally, Ms. Highsmith and her work have been featured and praised in

publications by some of the most highly regarded international media organizations, including
newspaper, magazine, and television coverage by The Washington Post, The New York Times,
The Washington Post Magazine, Time, Life, Smithsonian, and CBS News.
46.

Jeremy Adamson, Director of Collections and Services for the U.S. Library of

Congress, has said the following of Ms. Highsmith and her work:
Highsmith’s color images are certainly of the highest technical and
artistic quality. But more importantly, she has the uncanny ability to
identify, focus on and capture for posterity the essential features of our
social landscape and physical environment, both natural and man-made.
A photograph by Carol Highsmith is a document of rare precision and
beauty, revealing with exacting clarity the look and feel of people and
places across our great nation.
47.

The United States Postal Service (“USPS”) has twice chosen Ms. Highsmith’s

photographs for stamps, namely, these two iconic images:

Fig. 1
48.

Fig. 2

Figure 1 is an iconic color photograph that Ms. Highsmith took of the Jefferson

Memorial, which the USPS chose in 2002 to feature on a USPS Priority Mail stamp,
approximately 100 million copies of which were produced.

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49.

Figure 2 is an iconic black-and-white photograph that Ms. Highsmith took of the

statute of Abraham Lincoln in the Lincoln Memorial, which the USPS chose in 2013 to feature
on a USPS 20-cent stamp.
II.

DEFENDANT GETTY’S CONDUCT.
a. Defendant Getty Images is a $3.3 Billion Company Whose Primary Business
is Buying and Selling Copyright Licenses for Photographs, Videos, Music,
and Other Media.
50.

Getty is a Seattle-based stock photo company last purchased by the world’s

largest private equity firm, The Carlyle Group, for $3.3 billion in 2012.
51.

52. Getty further describes itself as follows on its website:
Getty Images has a vast and growing network of exclusive commercial
and distribution partnerships with the world’s most prestigious media,
publishing and entertainment companies, as well as with the most
prominent sports governing bodies across the globe. After 12 years of
trading publicly on the NASDAQ and the NYSE, Jonathan [Klein]
successfully took Getty Images private in July 2008, in partnership with
Hellman & Friedman, in a $2.4 billion transaction. In October 2012, the
1

http://press.gettyimages.com/about-us/

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management team, led by Jonathan, together with the Getty family and
The Carlyle Group, acquired Getty Images for $3.3 billion.2
53. In a press release issued on April 27, 2016,3 Getty stated, in relevant part:
Because image consumption is immediate, once an image is displayed in
high-resolution, large format, there is little impetus to view the image on
the original source site….
Getty Images’ General Counsel, Yoko Miyashita says: “Getty Images
represents over 200,000 photojournalists, content creators and artists
around the world who rely on us to protect their ability to be
compensated for their work. Google’s behavior is adversely affecting not
only our contributors, but the lives and livelihoods of artists around the
word – present and future. By standing in the way of a fair marketplace
for images, Google is threatening innovation, and jeopardizing artists’
ability to fund the creation of important future works. Artists need to
earn a living in order to sustain creativity and licensing is paramount to
this; however, this cannot happen if Google is siphoning traffic and
creating an environment where it can claim the profits from individuals’
creations as its own.”
Miyashita continues: “Getty Images believes that images have the power
to move the world by spurring action and driving change. It is key that
these issues with Google are addressed and that the dominant search
engine in Europe leads users to legitimate sources for imagery, rather
than creating an environment that benefits Google alone. A fair
marketplace will allow photographers to continue to capture the groundbreaking imagery that informs and impacts the world every day.”
Getty Images firmly supports a more image-rich, digital world, but one
that recognizes and remunerates the content creators who create this
imagery. In 2014, Getty Images launched its embed tool, which
revolutionized the visual content industry by making imagery available
for easy, legal sharing at no cost for non-commercial use. This embed
functionality provides consumers with an easy, legal alternative to the
“right click,” an alternative that ensures the content creator is
appropriately credited for their work and that the image is clearly
traceable to Getty Images in the event that a user wishes to license the
image for a commercial purpose.”

b. Getty is Listing Ms. Highsmith’s Work on Its Commercial Website Without
Her Permission, Misrepresenting the Author and Copyright Owner of Her
Work, and Selling Licenses for Her Work Despite Having No Right to Do
So.
54.

Getty has no contract or other agreement with Ms. Highsmith related to the

Highsmith Photos and has not otherwise obtained any license, permission, or other grant of
rights in the Highsmith Photos from Ms. Highsmith (other than the right to reproduce and/or
display them for free, which she has granted to everyone).
56.

For each Highsmith Photo appearing on the Getty website, Getty makes the

image available on multiple pages on its website with materially false information regarding:
(a) the name and other identifying information about the author of the Highsmith Photo;
(b) the name of and other identifying information about the copyright owner of the
Highsmith Photo; and
(c) the terms and conditions for use of the Highsmith Photo.
57.

For example, without limitation, Getty on its website identifies the Highsmith

Photos on some pages as being, “By: Buyenlarge,” without any credit given to Ms. Highsmith,
and on other pages with the identifier, “Credit: Buyenlarge/Contributor,” together with a
description of the work stating the title (or, in some instances, partial title), followed by, “(Photo
by Carol M. Highsmith/Buyenlarge/Getty Images).”
58.

Nowhere on its website does Getty identify Ms. Highsmith as the sole author of

the Highsmith Photos.
59.

Likewise, nowhere on its website does Getty identify Ms. Highsmith as the

copyright owner of the work.

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60.

Instead, Getty misrepresents the terms and conditions of using the Highsmith

Photos by falsely claiming a user must buy a copyright license from Getty in order to have the
right to use the Highsmith Photos.
61.

For example, without limitation, Getty offers for sale on its website copyright

licenses for using Highsmith Photos, with “Standard editorial rights” packages starting at
$175.00 USD for a small size up to $575.00 USD for a large size, and with “Custom rights”
also offered.
62.

Nowhere on its website does Getty identify the Highsmith Photos as being

available to the public to reproduce and display for free, through the Library website.
63.

One example of a Highsmith Photo listing on Getty’s website is attached hereto

as Exhibit D.
64.

Getty has unjustly profited by selling copyright licenses for use of Highsmith

Photos despite Ms. Highsmith having made the Highsmith Photos available through the Library
for the public to reproduce and display, for free.
65.

For example, a Google search of “Highsmith Buyenlarge” reveals numerous

Some of these media organizations are the same ones that have featured stories

about Ms. Highsmith and her work.

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III.

DEFENDANT ALAMY’S CONDUCT.
a. Alamy is a Competitor of Defendant Getty Whose Primary Business is Also
Buying and Selling Copyright Licenses for Photographs, Videos, and other
Media.
67.

Alamy is a UK-based company founded in 1999 that sells copyright licenses for,

as its website says, “over 75 million high quality stock images, vectors and videos from Alamy,
the world’s largest stock photo collection.”4
68.

Alamy invites contributors to upload photographs to its website, for which it

them offers commercial copyright licenses in exchange for the payment of money.
69.

Alamy’s website proclaims a “Fair and equitable approach to photographers,”

stating:
In the beginning, building a substantial bank of diverse photography was
the biggest hurdle to cross. Alamy bucked the trend by offering a
groundbreaking approach to photographer commissions with returns
ranging from 85–65%. Over the years commission splits across the
industry have migrated further in favour of the agency, but Alamy has
maintained a fair and equitable approach and commission is now 50/50
across the board.5
70.

Alamy’s website also proclaims “Unprecedented Growth,” stating:
Alamy packaged digital photography in a way that grabbed the market's
attention, and allied with the equitable approach to its photographers the
company reached its first million images in just over 4 years and became
profitable in 5 years. And now, fourteen years after it was founded,
Alamy has the largest online collection of images and video clips. As a
new player on the block, Alamy didn´t have a multimillion dollar legacy
of non-digital images that it had to deal with. So from the outset the
company was lean and agile and able to make the most of the advantages
offered to it from new and emerging technology. Indeed, Alamy has used
technology to great effect to drive the market forward.6

b. Alamy is Listing Ms. Highsmith’s Work on its Website Without Her
Permission, Misrepresenting the Author and Copyright Owner of Her
Work, and Selling Licenses for Her Work, Despite Having No Right to Do
So.
71.

Alamy has no contract or other agreement with Ms. Highsmith related to the

Highsmith Photos and has not otherwise obtained any license, permission, or other grant of
rights in the Highsmith Photos from Ms. Highsmith.
73.

For each Highsmith Photo appearing on Alamy’s website, Alamy makes the

image available with false information regarding:
(a) the name and other identifying information about the author of the Highsmith Photo;
(b) the name of and other identifying information about the copyright owner of the
Highsmith Photo; and
(c) the terms and conditions for use of the Highsmith Photo.
74.

For example, on many pages on its website, Alamy has made the Highsmith

Photos available with no reference whatsoever to Ms. Highsmith as either the author or the
copyright owner of the work, thus distributing false author and/or copyright owner information.
75.

For further example, on other pages on its website, Alamy places underneath the

have infringed Alamy’s copyrights and demanding payment of a settlement to Alamy to avoid
being sued.
94.

The letters and/or emails sent by LCS to allegedly infringing users of

Highsmith’s Photos threaten the recipient, stating that he/she must pay LCS’s client, even if the
user did not know that such use was allegedly infringing, and even if the user ceases and desists
or even has already ceased and desisted from the allegedly infringing use.
b. Defendant LCS, On Behalf of Alamy, Sent a Threatening Letter to the This
is America! Foundation, Ms. Highsmith’s Own Non-Profit Organization, for
Using a Highsmith Photo Without Buying a License from Defendant Alamy.
95.

Most egregiously, on or about December 14, 2015, LCS sent a threatening

communication (attached hereto as Exhibit A) purportedly on behalf of Alamy of the type
described above to This is America! Foundation (the “Letter”), regarding its use of the image
depicted in Figure 3, which Alamy had posted on its website and for which it was purporting to
sell copyright licenses:

Fig. 3
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96.

The Letter stated as follows: “We have seen that an image or image(s)

represented by Alamy has been used for online use by your company. According to Alamy’s
records your company doesn’t have a valid license for use of the image(s).” (emphasis in
original).
97.

The Letter went on to state as follows: “Although this infringement might have

been unintentional, use of an image without a valid license is considered copyright infringement
in violation of the Copyright Act, Title 17, United States Code. This copyright law
entitles Alamy to seek compensation for any license infringement.”
98.

The letter demanded a settlement payment of $120.00.

99.

The Letter’s originating address block purports to be sent on behalf of “License

Compliance Services, Inc. on behalf of Alamy” located at Columbia Center, 701 Fifth Avenue,
42th Floor, Suite 4272, Seattle, WA 98104, but demands that payment be sent to “License
Compliance Services/Picscout Inc.” at the same address.
100.

According to the Washington Secretary of State records, License Compliance

Services, Inc. was not formed until three months after the Letter was sent.
101.

The Letter is signed by “License Compliance Services/LCS@LCS.global.”

102.

The Whois information for LCS.global indicates that the domain is registered by

This same address is given in the Registrant, Administrator, and Technical

contact information for LCS.global.
104.

In the “Frequently Asked Questions” section of the Letter, the answer to the

question “What if I didn’t know?” includes the following language: “You may have employed a

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third party, former worker or intern to design and develop your company’s site. However, the
liability of any infringement ultimately falls on the company (the end user) who hired that party,
employee or intern.” The answer to the question “What if I simply remove the image?”
includes the following language: “While we appreciate the effort of removing the material in
question from your site, we still need compensation. Your company has benefited by using our
imagery without our permission. As the unauthorized use has already occurred, payment for that
benefit is necessary.”
105.

Ms. Highsmith was shocked to receive such a threatening communication from

Defendant LCS, because This is America! Foundation is the non-profit organization that she
formed in 2011 to support her This is America! Project, the photograph at issue is one of Ms.
Highsmith’s own original works of authorship, and This is America! Foundation unquestionably
had the right to use Ms. Highsmith’s own photographs without obtaining a license from
Defendant Alamy.
106.

On December 23, 2015, Ms. Highsmith called LCS at the telephone number

given in the Letter to discuss her receipt of the Letter.
107.

During that telephone conversation, which lasted approximately 27 minutes, Ms.

Highsmith identified herself as the author of the photograph in question.
108.

Ms. Highsmith also told the representative of LCS about the fact that she had

donated her photographs to the Library of Congress and made them available to the public to
reproduce and display for free, and asked for written verification that they would not pursue any
further action against her.

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109.

On December 29, 2015, Ms. Highsmith received an email from LCS

acknowledging that “after further review” it had “closed [the] case” against her, thereby
implicitly acknowledging the correctness and propriety of her position. See Exhibit G.
110.

Ms. Highsmith’s aforesaid discussions with LCS gave the Defendants actual

and/or constructive knowledge, notice, and/or reason to know or believe that LCS’s, Picscout’s,
Alamy’s, and Getty’s uses of the Highsmith Photos in this manner was improper and unlawful.
111.

reason to know or believe that their uses of the Highsmith Photos were improper and illegal, the
Defendants nonetheless continued their improper and illegal actions with respect to the
Highsmith Photos as alleged hereinabove.
112.

The fact that the Defendants have continued to purport to sell licenses to the

Highsmith Photos means, at a minimum, that the Defendants’ actions are intentional.
113.

Indeed, for example, even after LCS acknowledged in December 2015 that it

“closed [the] case” regarding the above-discussed image, to this day Alamy and Getty continue
to display the above photograph on their websites and continue to purport to sell copyright
licenses for it, despite knowing that that they have no right to do so.
c. LCS’s Knowledge and Intent Can and Should Be Imputed to Getty and
Alamy.
114.

Getty owns, controls, or is under common ownership and/or control with

Defendants LCS and Picscout.
115.

For example, three of the four “Governing Persons” of LCS listed on the

Because of the common ownership and/or control of LCS, Picscout, and Getty as

described hereinabove, and because of the agency relationship between the Defendants
described hereinabove, any knowledge, willful blindness, and/or intent of LCS and/or Picscout
can and should be imputed to Getty.
119.

Because of the apparent and/or actual agency relationship between Alamy,

Picscout and LCS as described hereinabove, including specifically as to the Highsmith Photo as
to which LCS sent Ms. Highsmith a settlement demand, any knowledge, willful blindness,
and/or intent of LCS or Picscout can and should be imputed to Alamy.
V.

THE DEFENDANTS’ WRONGFUL CONDUCT HAS INJURED MS.
HIGHSMITH AND THE PUBLIC, AND WILL CONTINUE TO DO SO
UNLESS BROUGHT TO A HALT BY THIS COURT.
120.

The Defendants’ actions as described hereinabove have injured Ms. Highsmith,

including but not limited to injuring Ms. Highsmith’s personal and professional reputation;
harming the value of Ms. Highsmith’s past and future work; infringing upon Ms. Highsmith’s
rights in her name and/or likeness; and infringing upon Ms. Highsmith’s exercise of her
exclusive rights under 17 U.S.C. § 106 with respect to the Highsmith Photos.
121.

The economic damage that Ms. Highsmith has suffered includes, without

limitation, any and all revenue received by the Defendants based on purported licenses sold for

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the Highsmith Photos. These funds represent money that Ms. Highsmith could have received
had she attempted to monetize her photos through the Defendants.
122.

The injury to Ms. Highsmith’s reputation has been even more severe.

123.

There is at least one example of a recipient of a threatening letter for use of a

Highsmith Photo researching the issue and determining that Ms. Highsmith had made her
photos freely available and free to use through the Library website. See, e.g., Exhibit F.
124.

Therefore, anyone who sees the Highsmith Photos and knows or learns of her

gift to the Library could easily believe her to be a hypocrite.
VI.

OTHER
INDIVIDUALS,
COMPANIES,
AND
ORGANIZATIONS,
INCLUDING THOSE REGULARLY DEALING IN COPYRIGHTS,
ROUTINELY ASK FOR MS. HIGHSMITH’S PERMISSION BEFORE
USING HIGHSMITH PHOTOS COMMERCIALLY.
125.

Unlike the Defendants, other individuals, companies, and organizations routinely

contact Ms. Highsmith to request her permission to use Highsmith Photos in a commercial
manner, including businesses regularly dealing in copyrights.
126.

For example, in 2013, third party Knight Takes King Productions, LLC, sought

and obtained Ms. Highsmith’s permission to use – for free – two of her photographs that they
had found in Ms. Highsmith’s collection at the Library as background, non-featured wall
dressing for a set for the series House of Cards. See Exhibit H.
127.

For further example, having previously sought and obtained Ms. Highsmith’s

permission in 2014 to use – for free – two of her photographs that are part of her collection at
the Library in the major motion picture Batman v. Superman, third party Warner Bros. Pictures,
a division of WB Studio Enterprises Inc., on behalf of Dena Films, Ltd., in June 2016 sought
Ms. Highsmith’s permission to use – for free – four of her photographs that they had found in

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Ms. Highsmith’s Library collection as background set dressing for a major motion picture
currently under development. See Exhibit I.
128.

As yet another example, in 2006, third party Universal Network Television

sought and obtained Ms. Highsmith’s permission to use – for free – Ms. Highsmith’s
photographs of the Fulton Steamboat, to be used in connection with the television program “The
Office”. See Exhibit J.
VII.

FINAL JUDGMENT HAS BEEN ENTERED AGAINST GETTY WITHIN
THE LAST 3 YEARS FOR ANOTHER VIOLATION OF 17 U.S.C. § 1202(a).

129.

In 2014, a final judgment was entered against Defendant Getty for violating 17

Ms. Highsmith adopts and incorporates by reference all allegations set forth in

all paragraphs hereinabove as if fully restated in this paragraph.
131.

The Highsmith Photos are original works of authorship subject to the full

protection of the United States copyright laws.
132.

Ms. Highsmith is the sole and exclusive owner of all rights, title, and interest in

and to the copyrights in the Highsmith Photos, subject to licenses Ms. Highsmith has given to
others, including without limitation the non-exclusive, free license Ms. Highsmith has given to
the public to reproduce and display the Highsmith Photos.

at least, 17 U.S.C. § 1202(c)(1)-(3), (6), including: the title and other information identifying the
work; the name of, and other identifying information about, the author of the work; the name of,
and other identifying information about, the copyright owner of the work; and the terms and
conditions for use of the work.
134.

By way of example and not limitation, on the main photo page for each of the

Highsmith Photos on the Library website, the Library website provides information that
includes but is not necessarily limited to the following: (a) Ms. Highsmith’s title for the work;
(b) an identification of “Carol M. Highsmith” as the author or creator of the work; (c) a proper
credit line to use with the work referencing the Library of Congress collection in which the
work appears; (d) in some instances, a citation to the work in MLA, Chicago, and/or AP
formats; (e) a link to the Highsmith collection main page, which provides information indicating
Ms. Highsmith’s intention that the public be given free access to her collection; (f) in many if
not all instances, a rights advisory indicating “No known restrictions on publication,” signifying
Ms. Highsmith’s intention that her images may be used by the public for free without
purchasing a license; and (g) in many if not all instances, one or more statements that, “Rights
assessment is your responsibility,” and/or a statement that, “The Library of Congress generally
does not own rights to material in its collections and, therefore, cannot grant or deny permission
to publish or otherwise distribute the material.”
135.

In violation of 17 U.S.C. § 1202(a), Defendant Getty, knowingly and with the

intent to induce, enable, facilitate, or conceal infringement, has provided copyright management
information for the Highsmith Photos that is false.

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136.

In violation of 17 U.S.C. § 1202(a), Defendant Getty, knowingly and with the

intent to induce, enable, facilitate, or conceal infringement, has distributed copyright
management information for the Highsmith Photos that is false.
137.

In violation of 17 U.S.C. § 1202(b), Defendant Getty, without the authority of

the copyright owner or the law, intentionally removed or altered copyright management
information for the Highsmith Photos, knowing or having reasonable grounds to know that
doing so would induce, enable, facilitate, or conceal an infringement of a right under Title 17 of
the United States Code.
138.

In violation of 17 U.S.C. § 1202(b), Defendant Getty, without the authority of

the copyright owner or the law, has distributed copyright management information for the
Highsmith Photos knowing that said copyright management information has been removed or
altered without authority of the copyright owner or the law, knowing or having reasonable
grounds to know that doing so would induce, enable, facilitate, or conceal an infringement of
any right under Title 17 of the United States Code.
139.

In violation of 17 U.S.C. § 1202(b), Defendant Getty, without the authority of

the copyright owner or the law, has distributed copies of the Highsmith Photos knowing that the
copyright management information for said Highsmith Photos has been removed or altered
without authority of the copyright owner or the law, knowing or having reasonable grounds to
know that doing so would induce, enable, facilitate, or conceal an infringement of any right
under Title 17 of the United States Code.
140.

Getty has violated 17 U.S.C. § 1202 with respect to thousands of Highsmith

Photos, at a minimum.

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141.

For example, without limitation, a search of “Carol Highsmith” on Getty’s

website returns 18,752 results, and upon information and belief each of those results is a
Highsmith Photo as to which Getty has violated 17 U.S.C. § 1202.
142.

For example, as shown in the photo taken from Defendant Getty’s website in

Figure 4, Getty provides a false watermark over the image falsely claiming that Getty has some
kind of ownership interest in the photograph:

Fig. 4
143.
information:

Getty also provides the following examples of false copyright management
“Credit:

Buyenlarge/Contributor”

and

“Photo

by

Carol

M.

Highsmith/Buyenlarge/Getty Images”.
144.

Neither Buyenlarge nor Getty had any involvement whatsoever with the making

of the Highsmith Photos.

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145.

Getty has also misrepresented the terms of use of the Highsmith Photos, which is

Ms. Highsmith has given the Highsmith Photos to the public to reproduce and

display, for free.
147.

The infringement that has been induced, enabled, facilitated, or concealed under

the statute is, at a minimum, an infringement of Ms. Highsmith’s exclusive right under the
preamble to 17 U.S.C. 106 to authorize (or set the terms for) the reproduction and distribution
of copies of her works, as well as her exclusive right under 17 U.S.C. 106(3) to “distribute
copies … of the copyrighted work to the public by sale or other transfer of ownership.”
148.

The conduct of Getty is intentional, at a minimum, because despite Ms.

Highsmith’s telephone call to Getty (or Getty’s agent), Getty continues to purport to sell
licenses to the Highsmith Photo she was accused of infringing, along with all of her other
photos found on Getty’s website.
149.

At no time following Ms. Highsmith’s telephone call did Getty or its agent reach

out to Ms. Highsmith to attempt to correct the situation.
150.

Ms. Highsmith is a “person injured” by Getty’s violations of Section 1202,

thereby qualifying her as a person who may bring a civil action for such violations under
Section 1203.
151.

other things, and if she so elects as provided in 17 U.S.C. § 1203(c)(3)(B), “an award of
statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more
than $25,000.”

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152.

When Getty is found to have committed one violation of 17 U.S.C. § 1202 for

each of the 18,755 results of a search for “Carol M. Highsmith” on Getty’s website, Ms.
Highsmith would be entitled to recover, among other things, and if she so elects, aggregate
statutory damages against Getty of not less than forty-six million, eight hundred eighty-seven
thousand five hundred dollars ($46,887,500) and not more than four hundred sixty-eight
million, eight hundred seventy-five thousand dollars ($468,875,000).
153.

Additionally, because Getty has already had a final judgment entered against it in

the past three years in the Morel v. Getty case, the Court may treble the statutory damages in
this case.
COUNT II:
DEFENDANT ALAMY’S VIOLATIONS OF
THE DIGITAL MILLENNIUM COPYRIGHT ACT
(17 U.S.C. § 1202)
154.

Ms. Highsmith adopts and incorporates by reference all allegations set forth in

all paragraphs hereinabove as if fully restated in this paragraph.
155.

In violation of 17 U.S.C. § 1202(a), Defendant Alamy, knowingly and with the

intent to induce, enable, facilitate, or conceal infringement, has provided copyright management
information for the Highsmith Photos that is false.
156.

In violation of 17 U.S.C. § 1202(a), Defendant Alamy, knowingly and with the

intent to induce, enable, facilitate, or conceal infringement, has distributed copyright
management information for the Highsmith Photos that is false.
157.

In violation of 17 U.S.C. § 1202(b), Defendant Alamy, without the authority of

the copyright owner or the law, intentionally removed or altered copyright management
information for the Highsmith Photos, knowing or having reasonable grounds to know that

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doing so would induce, enable, facilitate, or conceal an infringement of any right under Title 17
of the United States Code.
158.

In violation of 17 U.S.C. § 1202(b), Defendant Alamy, without the authority of

the copyright owner or the law, has distributed copyright management information for the
Highsmith Photos knowing that said copyright management information has been removed or
altered without authority of the copyright owner or the law, knowing or having reasonable
grounds to know that doing so would induce, enable, facilitate, or conceal an infringement of
any right under Title 17 of the United States Code.
159.

In violation of 17 U.S.C. § 1202(b), Defendant Alamy, without the authority of

the copyright owner or the law, has distributed copies of the Highsmith Photos, knowing that
the copyright management information for said Highsmith Photos has been removed or altered
without authority of the copyright owner or the law, knowing or having reasonable grounds to
know that doing so would induce, enable, facilitate, or conceal an infringement of any right
under Title 17 of the United States Code.
160.

For example, many Highsmith Photos at Alamy are credited to “The Protected

Art Archive” or “Everett Collection Inc.,” and upon information and belief many of those
photos are Highsmith Photos as to which Alamy has violated 17 U.S.C. § 1202.
162.

Many of the Highsmith Photos found on the Defendant Alamy’s website do not

mention Ms. Highsmith at all.

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163.

Moreover, all of the Highsmith Photos found on the Defendant Alamy’s website

bear watermarks, as shown in Figure 5, that falsely suggest Defendant Alamy as the owner of
the image.

Fig. 5
164.

Defendant Alamy has also misrepresented the terms of use of the Highsmith

Photos, which is another example of providing false copyright management information. Ms.
Highsmith has given the Highsmith Photos to the public to use for free.
165.

The infringement that has been induced, enabled, facilitated, or concealed under

the statute is, at a minimum, an infringement of Ms. Highsmith’s exclusive right under the
preamble to 17 U.S.C. 106 to authorize (or set the terms for) the reproduction and distribution
of copies of her works, as well as her exclusive right under 17 U.S.C. 106(3) to “distribute
copies … of the copyrighted work to the public by sale or other transfer of ownership.”

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166.

The conduct of Defendant Alamy is intentional, at a minimum, because despite

Ms. Highsmith’s telephone call to Defendant Alamy’s agent, Defenant Alamy continues to
purport to sell licenses to the Highsmith Photo she was accused of infringing, along with all of
her other photos found on Defendant Alamy’s website.
167.

At no time following Ms. Highsmith’s telephone call did Defendant Alamy or its

agent reach out to Ms. Highsmith to attempt to correct the situation.
168.

Ms. Highsmith is a “person injured” by Defendant Alamy’s violations of Section

1202, thereby qualifying her as a person who may bring a civil action for such violations under
Section 1203.
169.

recover, among other things, and if she so elects as provided in 17 U.S.C. § 1203(c)(3)(B), “an
award of statutory damages for each violation of section 1202 in the sum of not less than $2,500
or more than $25,000.”
170.

Defendant Alamy has committed at least one violation of Section 1202 per

Highsmith Photo that is available on its website.
171.

Thus, for example, without limitation, when Defendant Alamy is found to have

committed one violation of 17 U.S.C. § 1202 for each of the approximately 500 Highsmith
Photos (at a minimum) on Alamy’s website, Ms. Highsmith would be entitled to recover,
among other things, and if she so elects, aggregate statutory damages against Alamy of not less
than one million two hundred fifty thousand dollars ($1,250,000) and not more than twelve
million five hundred thousand dollars ($12,500,000).

and with the intent to induce, enable, facilitate, or conceal infringement, have distributed
copyright management information for the Highsmith Photos that is false.
175.

In violation of 17 U.S.C. § 1202(b), Defendants LCS and Picscout, without the

authority of the copyright owner or the law, intentionally removed or altered copyright
management information for the Highsmith Photos, knowing or having reasonable grounds to
know that doing so would induce, enable, facilitate, or conceal an infringement of any right
under Title 17 of the United States Code.
176.

In violation of 17 U.S.C. § 1202(b), Defendants LCS and Picscout, without the

authority of the copyright owner or the law, have distributed or imported for distribution
copyright management information for the Highsmith Photos knowing that said copyright
management information has been removed or altered without authority of the copyright owner
or the law, knowing or having reasonable grounds to know that doing so would induce, enable,
facilitate, or conceal an infringement of any right under Title 17 of the United States Code.

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177.

In violation of 17 U.S.C. § 1202(b), Defendants LCS and Picscout, without the

authority of the copyright owner or the law, has distributed copies of the Highsmith Photos
knowing that the copyright management information for said Highsmith Photos has been
removed or altered without authority of the copyright owner or the law, knowing or having
reasonable grounds to know that doing so would induce, enable, facilitate, or conceal an
infringement of any right under Title 17 of the United States Code.
178.

management information occurs when Defendant LCS/Picscout sends letters representing that it
is authorized by the copyright owner to threaten copyright infringement, and fails to credit Ms.
Highsmith as the author or copyright owner.
179.

The infringement that has been induced, enabled, facilitated, or concealed under

the statute is, at a minimum, an infringement of Ms. Highsmith’s exclusive right under the
preamble to 17 U.S.C. 106 to authorize that copies of her work be made and distributed, as well
as her exclusive right under 17 U.S.C. 106(3) to “distribute copies … of the copyrighted work
to the public by sale or other transfer of ownership.”
180.

Ms. Highsmith is a “person injured” by Defendant LCS/Picscout’s violations of

Section 1202, thereby qualifying her as a person who may bring a civil action for such
violations under Section 1203.
181.

It is unknown at this time how many threatening letters Defendants LCS and

Picscout have sent to individuals falsely alleging copyright infringement for Highsmith Photos.
182.

Defendants LCS and Picscout have committed at least one violation of Section

l. Awarding Ms. Highsmith reasonable and necessary attorney’s fees under 17
U.S.C. § 1203(b)(5) against Defendants License Compliance Services, Inc.
and Picscout, Inc.;
m. Awarding Ms. Highsmith reasonable and necessary attorney’s fees under 17
U.S.C. § 1203(b)(5) against Defendant Alamy, Ltd.;
n. Ordering under 17 U.S.C. § 1203(b)(6) the remedial modification or the
destruction of any device or product involved in Getty Images (US), Inc.’s
violations of 17 U.S.C. §§ 1202(a) and/or 1202(b) that is in the custody or
control of Getty Images (US), Inc.;
o. Ordering under 17 U.S.C. § 1203(b)(6) the remedial modification or the
destruction of any device or product involved in License Compliance
Services, Inc.’s or Picscout, Inc.’s violations of 17 U.S.C. §§ 1202(a) and/or
1202(b) that is in the custody or control of License Compliance Services,
Inc.;
p. Ordering under 17 U.S.C. § 1203(b)(6) the remedial modification or the
destruction of any device or product involved in Alamy, Ltd.’s violations of
17 U.S.C. §§ 1202(a) and/or 1202(b) that is in the custody or control of
Alamy, Ltd.;
q. Awarding Ms. Highsmith all available pre-judgment and post-judgment
interest on all amounts of any judgment; and